Since our last update in the ML Genius Holdings LLC v. Google LLC case, Genius filed a petition for writ of certiorari with the U.S. Supreme Court, the Open Markets Institute and the Digital Justice Foundation each filed an amicus brief in support of Genius, and the Supreme Court asked the Solicitor General on behalf of the U.S. government, to give their opinion. As a refresher, Genius had alleged that Google violated its terms of service by aggregating lyric transcriptions that were pulled from Genius’ website and displaying these lyrics on Google’s search results page, which limited traffic to Genius’ website. Genius alleged it was able to confirm Google’s unauthorized copying and display of Genius’ curated lyric transcriptions by using digital watermarks and morse code in its lyric transcriptions. Since Genius does not own the copyright in the lyrics, Genius has a stronger case for breach of contract than for copyright infringement. But in March, the Second Circuit held that Genius’ breach of contract claim was preempted by the Copyright Act’s preemption clause. When Genius filed its petition in August, Genius based its claim largely on the circuit split regarding the Copyright Act’s preemption of breach of contract claims.  

According to the U.S. Constitution, the Supreme Court has original jurisdiction and appellate jurisdiction to hear cases. This means the Supreme Court has exclusive jurisdiction in “all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party” (original jurisdiction), and can hear cases appealed from lower courts (appellate jurisdiction). The mechanism by which such lower court cases are sent to the Supreme Court is via a writ of certiorari, a request that the Supreme Court order a lower court to send the record up for review. If four of the nine Supreme Court Justices decide to accept the case, then the petition is granted. The Supreme Court only accepts around 1-2% of cases it is asked to review every year. 

Just last week, the Supreme Court invited the Solicitor General to file a brief on behalf of the U.S. government, which signals that the petition is being seriously considered by the Supreme Court. If the Supreme Court grants the petition, then the Supreme Court’s opinion on the case could impact how big tech companies and others scrape and aggregate third party content.

ML Genius Holdings LLC v. Google LLC, U.S. Supreme Court, No. 22-121.